Food Corporation Of India And Others vs Mahaveer Singh And Others

Ramesh Ranganathan, CJ

Heard Sri Arvind Vashisth, learned Senior Counsel appearing on behalf of the appellants and Sri Gopal K. Verma, learned counsel for the respondents-writ petitioners.

The delay, in filing these three Special Appeals, is of less than a fortnight. For the reasons, stated in the affidavit filed in support of the application for condonation of the delay, we are satisfied that the appellants should not be non-suited on the ground of delay. The delay is condoned, and the applications seeking condonation of delay are disposed of accordingly.

These three Special Appeals are preferred against the common order passed by the learned Single Judge in Writ Petition (S/S) Nos. 782, 752 and 785 of 2018 dated 29.03.2019.

The respondents herein invoked the jurisdiction of this Court, under Article 226 of the Constitution of India, seeking a writ of certiorari to quash the order passed by the second respondent dated 29.12.2017; a writ of mandamus directing respondent nos. 1 and 2 to take a decision on the proposed implementation of the Scheme of Single Labour System forthwith; and a writ of mandamus directing the respondents to pay the minimum of the pay scale/ equal pay for equal work as given by the respondents to departmental labour as well as direct-payment system workers of the department of the respondents-writ petitioners.

Facts, to the limited extent necessary, are that the respondents-writ petitioners are working as No Work No Pay (NWNP) workers in the Food Corporation of India (for short 'FCI') Bazpur Depot, Haldwani for the last more than two decades. They claim that they have been denied the minimum of the pay-scale by the FCI, as was being paid to other employees. A bipartite settlement is said to have been arrived at on 07.05.1995 between the FCI Management and the FCI Workers Union regarding abolition of contract labour system by introduction of a 'Productivity Linked Piece Rate' system on 'No Work No Pay' basis in fourteen depots, which included the Kashipur Depot. The said settlement was approved by the Government of India, and a Notification dated 04.07.1995 was issued. Pursuant thereto, three categories were formulated amongst the workers employed in FCI Godowns which were (a) Departmental Labour System (workers) ; (b) Direct Payment System (workers); and (c) No Work No Pay System (workers). The dispute, regarding anomalies in these three different systems, came up before different High Courts, and the Government of India by its order dated 08.07.2003, and in the exercise of its powers under Section 7-B of the Industrial Disputes Act, 1947, constituted a National Industrial Tribunal at Mumbai, and referred the following dispute to the National Industrial Tribunal for its adjudication under Section 10 (1-A) of the Industrial Disputes Act. The dispute, referred to the National Industrial Tribunal, reads as under:

"Whether the workers working under direct-payment system, no work no pay system and the management committee system are entitled for the same pay and other benefits as are available to the departmentalized labour in various depots of FCI throughout the country? If so, to what benefits they are entitled to?"

The appellants herein filed their reply before the National Industrial Tribunal and, since the contents thereof have also been noted by the learned Single Judge in the order under appeal, it is useful to extract the same:

".............. It is submitted that in view of the overall circumstances and also in view of the demands of certain sections of labour, the Corporation felt that it will be expedient in the interests of labour in general to devise a single labour system, so that all the labour working in the Corporation will be put on the same pattern of wages and other benefits. It is submitted that there are three types of labour working in the Corporation in addition t the contract labour. It is submitted that the three different systems which were evolved through different settlements have different wage structure and the Departmental labour is paid the highest. The workers working in other two systems feel aggrieved and therefore, it is felt desirable to introduce a single labour system. It is submitted that the Corporation had, therefore, sent a proposal dated 05.01.2017 to all the unions and individuals who are parties before this Hon'ble Tribunal and had requested them to give their consent or response by 16.01.2017 and subsequently, the time has been extended to 27.01.2017. A copy of the said proposal addressed to all the parties to the proceedings before this Hon'ble Tribunal is annexed as Annexure-2. It is submitted that by its letter dated 16.01.2017, the All India Trade Union Congress had given the response conveying their agreement and consent to the proposal, broadly. A copy of the said letter of the All India Trade Union Congress dated 16.01.2017 is annexed as Annexure-3. Similarly, the FCI No Work No Pay System Mukti Morcha also gave their consent. A copy of the said letter of the FCI No Work No Pay System Mukti Morcha dated 25.01.2017 is annexed as Annexure-4. It is submitted that besides the two unions who gave consent to the proposal, several individual labourers (2719) gave consent to the proposal. Some other individual labourers not only gave consent to the proposal with some stipulations but had also requested for early implementation of the proposal i.e. within 3 months (280) . Statement showing the number of laborers who gave consent to the proposal and those who gave consent with some stipulations till date is annexed as Annexure-5. However, FCI Workers Union and FCI Handling Workers Union had not accepted the said proposal and conveyed their reluctance.

It is submitted that it is necessary to bring the subsequent developments to the notice of this Hon'ble Tribunal. It is submitted that if the parties to the proceedings before this Hon'ble Tribunal agree to the proposal made by the Corporation regarding the proposal for single labour system; it may not be necessary for this Hon'ble Tribunal to decide the questions involved in the present industrial dispute and the ID can be closed accordingly. As such, it will be expedient in the interests of Justice to take the documents on record and also take judicial note of the said developments which may be useful in resolving the dispute is between the parties before this Hon'ble tribunal in terms of the proposal of the Corporation dated 05.01.2017........"

The respondents-writ petitioners herein invoked the jurisdiction of this Court seeking implementation of the proposal dated 5.01.2017, and this Court, by its order in Writ Petition (S/S) No. 2391 of 2017 dated 08.11.2017, disposed of the writ petition directing the first respondent to decide the representation of the petitioner by passing a reasoned and speaking order within ten weeks from the date of presentation of a certified copy of the order, along with a copy of the representation dated 31.07.2017, in accordance with law. The decision, so taken, was directed to be communicated to the respondents-writ petitioners soon thereafter.

By the impugned order dated 29.12.2017, the appellant informed the respondents-writ petitioners that the proposal dated 5.01.2017 was a composite proposal, whereby it was proposed to bring No Work No Pay and Direct Payment System workers under a single labour system with improved wages and other benefits, subject to certain conditions, which, primarily, included withdrawal of some unreasonable benefits being given to the departmental labour; the proposal was further subject to approval of the Board of Directors, and the concerned Ministry; the other condition, stipulated under the said proposal, was withdrawal of ID Case No. 1/2003 filed by the Labour Unions, and some NWNP and DPS workers in their individual capacity, for payment of wages and other service conditions at par with the departmental labour system; and as the aforesaid composite proposal was not accepted by the Labour Unions, who were also parties to ID Case No. 1 of 2003, the same was submitted before the National Industrial Tribunal, Mumbai and was pending consideration before the Tribunal.

The appellant rejected the representation dated 20.11.2017, as the proposal dated 05.01.2017 for a single labour system was a composite proposal containing several conditions applicable to different categories of regular workers and was sub-judice before the National Industrial Tribunal, Mumbai, which was an appropriate forum to adjudicate such issues; and the NWNP and DPS workers were already pursuing their case before the said Tribunal directly or through their Unions. Aggrieved thereby, the respondents-writ petitioners invoked the jurisdiction of this Court resulting in the order under appeal being passed.

In the order under appeal, the learned Single Judge, after referring to the afore-extracted portion of the reply filed by the appellants before the National Industrial Tribunal, Mumbai, observed that, by way of the said affidavit, the appellants had, in principle, accepted the proposal as floated by them by the Office Memorandum dated 05.01.2017 for adopting the single labour system in all the unions and depots operated by them; they had, in fact, pleaded that, in view of the proposal, approval be granted by the Tribunal; as they had themselves voluntarily adjudicated upon and adopted the single labour system provided by the Office Memorandum dated 05.01.2017, and they had themselves sought for closure of the proceedings before the National Industrial Tribunal, Mumbai, the controversy stood resolved and nothing was left to be decided in view of the affidavit of the appellant; the prayer sought for in the writ petition stood granted to them in view of the affidavit filed by them before the National Industrial Tribunal; the impugned proceedings dated 29.12.2017, whereby the respondents-writ petitioners were informed that their representation could not be considered because of the pendency of the proceedings before the National Industrial Tribunal, was non-est in law; the workers of the three categories covered by the Office Memorandum dated 05.01.2017, and the members of the Union, would comply with the process contemplated under the Office Memorandum dated 05.01.2017 for availing the benefit of a single labour system; and, in the light of the assertions in the said affidavit, the grievance of the respondents-writ petitioners must be treated to have been redressed. The writ petition was closed in view of the averments in the said affidavit, the impugned order dated 29.12.2017 was held to have stood quashed, and the writ petition was closed. Aggrieved thereby, the present appeals.

Sri Arvind Vashisht, learned Senior Counsel appearing on behalf of the appellants-writ petitioners, would submit that, as has been stated in the said affidavit itself, the FCI Workers Union and FCI Handling Workers Union have not accepted the said proposal, and have conveyed their reluctance; the very object of the proposal is to introduce a single system for all workers in the Corporation; since the proposal made by the FCI has not been accepted by the two Unions, the said proposal would not apply to them; in which event, even if the proposal were to be implemented by the appellants, it would only apply to those who agree to the proposal, and would not apply to those who do not; and, consequently, this would result in defeating the very object of the proposal which is to have one single system in place.

On the other hand Sri Gopal K. Verma, learned counsel for the respondents-writ petitioners, would submit that all that the respondents-writ petitioners seek is for implementation of the proposal put forth by the FCI itself; as the FCI has made a proposal to the National Industrial Tribunal, there is nothing left for the National Industrial Tribunal to adjudicate; the requirement of passing an award is merely a formality; and it is wholly unnecessary for an award to be passed by the Tribunal for implementation of the proposal put forth by the FCI, since it is their proposal which the respondent-writ petitioners seek implementation of.

As noted hereinabove, the Government of India has referred the aforesaid dispute to the National Industrial Tribunal, Mumbai under Section 10(1-A) of the Industrial Disputes Act. Section 10(1-A) enables the Central Government, where it is of opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, to refer the dispute or any matter appearing to be connected with, or relevant to the dispute, by an order in writing. On a dispute being referred to it, the National Industrial Tribunal is required to pass an award.

Section 2(p) of the Industrial Disputes Act, 1947 defines 'settlement' to mean a 'settlement' arrived at in the course of conciliation proceedings, which includes a written agreement between the employer and the workmen arrived at otherwise than in the course of conciliation proceeding, where such agreement has been signed by the parties thereto in such manner as may be prescribed; and a copy thereof has been sent to an officer authorized in this behalf by the appropriate Government, and the conciliation officer.

Section 18 of the Industrial Disputes Act relates to persons on whom settlements and awards are binding. Under Section 18(1), a settlement arrived at by agreement between the employer and workman, otherwise than in the course of conciliation proceeding, shall be binding on the parties to the agreement. Section 18(3) stipulates that a settlement arrived at in the course of conciliation proceedings under this Act, or an arbitration award in a case where a notification has been issued under Section 10-A(3-A), or an award of a Labour Court, Tribunal or National Tribunal, which has become enforceable, shall be binding on (a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause; (c) where a party referred to in clause (a) or clause (b) is an employer, his heirs successors or assigns in respect of the establishment to which the dispute relates; and (d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute, and all persons who substantively become employed in that establishment or part.

Even if the proposal is accepted by the respondents-writ petitioners herein, it would apply only to them, and not to the FCI Workers Union and FCI Handling Workers Union, who have not accepted the proposal and have conveyed their reluctance. On the other hand, if an award is passed by the National Industrial Tribunal in terms of the proposal, then, notwithstanding the reluctance of these two Unions and their failure to accept such proposal, the award of the National Industrial Tribunal would bind them under Section 18(3) of the Industrial Disputes Act. Since the matter is pending before the National Industrial Tribunal, the appellants were justified in informing the respondents-writ petitioners that such a proposal could not be given effect to, till the National Industrial Tribunal passes an award in terms thereof. Implementing the proposal piecemeal would defeat the very object of having a single system in place. The proposal, in the absence of its being accepted by the FCI Workers Union and the FCI Handling Workers Union, would not apply to them, and cannot be enforced against the members of such Unions, who are also employed with the FCI. The mere fact that the respondents have filed an affidavit before the National Industrial Tribunal, Mumbai, furnishing details of the proposal, does not automatically result in its implementation. If, on the other hand, the said proposal is accepted by the National Industrial Tribunal, and an award is passed in terms thereof, it would then, undoubtedly, bind all the parties before the National Industrial Tribunal, and others referred to in Section 18(3) of the Industrial Disputes Act, in which event a single system applicable to all workmen of the FCI would come into operation.

We are satisfied, therefore, that the learned Single Judge was not justified in holding that mere filing of an affidavit, along with the proposal dated 05.01.2017, had itself resulted in implementation of the proposal. The order under appeal is set aside. Since the matter was referred to the National Industrial Tribunal by the Government of India as early as on 08.07.2003, and the matter is pending for the past sixteen years, we request the National Industrial Tribunal, Mumbai to pass an award at the earliest, preferably within six months from the date of production of a certified copy of this order.

With the aforesaid observations, the Special Appeals are disposed of. No costs.